October 1, 2015 - Lawyers from the ACLU of Oregon and the ACLU filed an amicus brief with the Federal Circuit in support of an Asian-American band appealing the denial of a trademark for their name, “The Slants.”
Speech, Trademark, and Rock & Roll
UPDATE (9/29/16): The United States Supreme Court has announced it will hear the case to decide if The Slants have the First Amendment Right to use their name.
Founded in 2006, The Slants are a household name in the Portland rock scene. Self-labeled the world’s only “Chinatown dance rock band,” the Asian heritage of its four members influences their music, lyrics, and image. The bandmates chose to name themselves The Slants as a reference to their perspective (or ‘slant’) on life as people of color. Additionally, it would help re-appropriate a racially-charged term and remove its derogatory sting. Simon Shiao Tam, the band’s founder and bassist, applied to register the band’s name as a federally recognized trademark. The U.S. Patent and Trademark Office (PTO) denied The Slants application pursuant to federal law thatgives the PTO the authority to reject trademarks it deems disparaging.
As discussed in our brief, the ACLU recognizes that historically the word “slant” has been used against persons of Asian descent in an offensive manner. Given this history, it is understandable that some members of the Asian-American community do not agree that the term should be, or can be, reappropriated to remove its power as a racial slur. We believe, however, that The Slants should not be denied the protections of an official trademark registration because the government disagrees with its position on what “slant” means to Asian-Americans. The First Amendment emphatically does not permit the government to predicate benefits in favor of certain viewpoints over others. It is antithetical to the principles of the Constitution—and frankly, too paternalistic for our taste—to let the government deny benefits based on what it thinks minority communities will find offensive—especially, as in this case, where members of that minority community are the ones seeking those benefits.
Ethnic or racial slurs may be distasteful to some and morally offensive to others, but they have never been the basis of constitutionally permissible limitations on the First Amendment. The argument denying a First Amendment free speech impact because applicants are still free to use the name without the trademark is misguided. The essence of the free speech rights in the First Amendment is to protect speech, even commercial speech in the form of trademarks, from unreasonable government action. A federal right of protection should not be withheld by reasoning The Slants still have lesser rights. We are deeply concerned that the controlling federal law, as applied, creates hurdles for racial minorities and other marginalized groups who are actively engaged in the reappropriation of harmful slurs. We think it is fair to categorize this as another form of institutional racism. While the PTO is attempting to do good by preventing the use of such terms, it is inadvertently making it more difficult for these groups to make important political statements. It simultaneously deprives them of the ability to monetize and spread their message throughout the United States.
See also: The Government’s Trying to Sell a New Slant on the First Amendment. We’re Not Buying It. (Updated)
Arthur B. Spitzer
August 24, 2015
United States Court of Appeals for the Federal Circuit
In U.S. Supreme Court